to fulfil to the utmost; and I shall therefore not leave the matter upon these authorities, but will bring it down to our own times, repeating my challenge to have produced one single authority in contradiction. Lord Coke, in his third Institute, p. 11 and 12, says: "The Indictment must charge that the prisoner traitorously compassed and imagined the death and destruction of the King." He says too,-"There must be a compassing or imagination; for an act without compassing, intent, or imagination, is not within the act, as appeareth by the express letter thereof. Et actus non facit reum nisi mens sit rea." Nothing in language can more clearly illustrate my proposition. The Indictment, like every other indictment, must charge distinctly and specifically the crime: that charge must therefore be in the very words of the statute which creates the crime: the crime created by the statute not being the perpetration of any act, but being, in the rigorous severity of the law, the very contemplation, intention, and contrivance of a purpose, directed to an act; that contemplation, purpose, and contrivance, must be found to exist, without which, says Lord Coke, there can be no compassing: and as the intention of the mind cannot be investigated without the investigation of conduct, the overt act is required by the statute, and must be laid in the Indictment and proved. It follows from this deduction, that upon the clear principles of the English law, every act may be laid as an overt act of compassing the King's death, which may be reasonably considered to be relevant and competent to manifest that intention; for, were it otherwise, it would be shutting out from the view of the jury, certain conduct of the prisoner, which might, according to circumstances, lead to manifest the criminal intention of his mind; and as more than one overt act may be laid, and even overt acts of different kinds, though not in themselves substantively treason, the judges appear to be justified in law, when they ruled them to be overt acts of compassing the death of the King; because they are such acts as before the statute of King William, which required that the Indictment should charge all overt acts, would have been held to be relevant proof; of which relevancy of proof the judges are to judge as matter of law; and therefore being relevant proof, must also be relevant matter of charge, because nothing can be relevantly charged which may not also be relevantly admitted to proof. These observations explain to the meanest capacity, in what sense Lord Coke must be understood, when he says, in the very same page, that, "A preparation to depose the King, and to take the King by force and strong hand, until he has yielded to certain demands, is a sufficient overt act to PROVE the Compassing of the King's death." He does not say

AS A PROPOSITION OF LAW, that he who prepares to seize the King, compasseth his death, but that a preparation to seize him is a sufficient overt act TO PROVE the compassing; and he directly gives the reason, "because of the strong tendency it has to that end." This latter sentence destroys all ambiguity. I agree perfectly with Lord Coke, and I think every Judge would so decide, upon the general principles of law and evidence, without any resort to his authority for it; and for this plain and obvious reason: The Judges who are by law to decide upon the relevancy or competency of the proof, in every matter criminal and civil, have immemorially sanctioned the indispensable necessity of charging the traitorous intention as the crime, before it was required by the statute of King William.-As the crime is in its nature invisible and inscrutable, until manifested by such conduct as in the eye of reason is indicative of the intention, which constitutes the crime; no overt act is therefore held to be sufficient to give jurisdiction, even to a jury, to draw the inference in fact of the traitorous purpose, but such acts from whence it may be reasonably inferred; and therefore as the restraint and imprisonment of a Prince has a greater tendency to his destruction than in the case of a private man, such conspiracies are admitted to be laid as overt acts, upon this principle: that if a man does an act from whence either an inevitable or a mainly probable consequence may be expected to follow, much more if he persists deliberately in a course of conduct, leading certainly or probably to any given consequence, it is reasonable to believe that he foresaw such consequence, and by pursuing his purpose with that foreknowledge, the intention to produce the consequence may be fairly imputed. But then all this is matter of fact for the Jury from the evidence, not matter of law for the Court; further than it is the privilege and duty of the Judge to direct the attention of the Jury to the evidence, and to state the law as it may result from the different views the jury may entertain of the facts; and if such acts could not be laid as overt acts, they could not be offered in evidence; and if they could not be offered in evidence, the mind of the prisoner, which it was the object of the trial to lay open as a clue to his intention, would be shut up and concealed from the Jury, whenever the death of the Sovereign was sought by circuitous but obvious means, instead of by a direct and murderous machination. But when they are thus submitted, as matter of charge and evidence to prove the traitorous purpose which is the crime, the security of the King and of the subject is equally provided for: all the matter which has a relevancy to the crime, is chargeable and provable, not substantively to raise from their establishment a legal inference, but to raise a presumption in

fact, capable of being weighed by the Jury with all the circumstances of the transaction, as offered to the Crown and the prisoner; their province being finally to say-not what was the possible or the probable consequence of the overt act laid in the Indictment, but whether it has brought them to a safe and conscientious judgment of the guilt of the prisoner; i. e. of his guilt in compassing the death of the King, which is the treason charged in the Indictment. Lord Hale is, if possible, more direct and explicit upon the subject. He says, page 107, "The words compass or imagine, are of a great latitude; they refer to the purpose or design of the mind or will, though the purpose or design takes not effect: but compassing or imagining, singly of itself, is an internal act, and, without something to manifest it, could not possibly fall under any judicial cognizance but of God alone; and therefore this statute requires such an overt act as may render the compassing or imagining capable of a trial and sentence by human judicatures." Now can any man possibly derive from such a writing (proceeding too from an au thor of the character of Lord Hale,) that an overt act of compassing, might in his judgment be an act committed inadver tently without the intention? Can any man gather from it, that a man, by falling into bad company, can be drawn in to be guilty of this species of treason by rash conduct, while the love of his Sovereign was glowing in his bosom? Can there be any particular acts which can entitle a Judge or Counsel to pronounce as a matter of law, what another man intends? or that what a man intends is not a matter of fact? Is there any man that will meet the matter fairly, and advance and support that naked proposition? At all events, it is certainly not a proposi tion to be dealt with publicly; because the man whose mind is capable even of conceiving it, should be treasured up in a museum, and exhibited there as a curiosity, for money.

Gentlemen, all I am asking, however, from my argument, and I defy any power of reason upon earth to move me from it, is this: that the prisoner being charged with intending the King's death, You are to find whether this charge be founded or unfounded; and that therefore, put upon the record what else you will,-prove what you will,-read these books over and over again, and let us stand here a year and a day in discoursing concerning them,-still the question must return at last to what you and YOU ONLY can resolve-Is he guilty of that base detestable intention to destroy the King? Nor whether you incline to believe that he is guilty; NOT whether you suspect, nor whether it be probable; NOT whether he may be GUILTY ;-no, but that PROVABLY HE IS GUILTY. If you can say this upon the evidence, it is your duty to say so, and you may, with a tran

quil conscience, return to your families: though by your judgment the unhappy object of it must return no more to his.Alas! Gentlemen, what do I say? HE has no family to return to-the affectionate partner of his life has already fallen a victim to the surprise and horror which attended the scene now transacting. But let that melancholy reflection pass—it should not, perhaps, have been introduced-it certainly ought to have no effect upon you who are to judge upon your oaths. I do not stand here to desire you to commit perjury from compassion;-but at the same time my earnestness may be forgiven, since it proceeds from a weakness common to us all. I claim no merit with the prisoner for my zeal ;-it proceeds from a selfish principle inherent in the human heart.—I am Counsel, Gentlemen, for myself. In every word I utter, I feel that I am pleading for the safety of my own life, for the lives of my children after me, for the happiness of my country, and for the universal condition of civil society throughout the world.

But let us return to the subject, and pursue the doctrine of Lord Hale upon the true interpretation of the term overt act, as applicable to this branch of treason. Lord Hale says, and I do beseech most earnestly the attention of the Court and Jury to this passage-" If men conspire the death of the King and thereupon provide weapons, or send letters, this is an overt act within the statute." Take this to pieces, and what does it amount to?" If men conspire the death of the King," that is the first thing, viz. the intention, " and thereupon," that is, in pursuance of that wicked intention, "provide weapons, or send letters for the execution thereof," i. e. for the execution of that destruction of the King, which they have meditated, "this is an overt act within the statute." Surely the meaning of all this is self-evident-If the intention be against the King's life, though the conspiracy does not immediately and directly point to his death, yet still the overt act will be sufficient if it be something which has so direct a tendency to that end, as to be competent rational evidence of the intention to obtain it. But the instances given by Lord Hale himself furnish the best illustration-"If men conspire to imprison the King by force and a strong hand until he has yielded to certain demands, and for that purpose gather company, or write letters, that is an overt act TO PROVE the Compassing the King's death, as it was held in Lord Cobham's case by all the Judges." In this sentence Lord Hale does not depart from that precision which so eminently distinguishes all his writings; he does not say, that if men conspire to imprison the King until he yields to certain demands, and for that purpose to do so and so, This is high treason—no, nor even an overt act of high treason, though he might in legal

language correctly have said so; but to prevent the possibility of confounding the treason with matter which may be legally charged as relevant to the proof of it, he follows Lord Coke's expression in the third Institute, and says, This is an overt act to prove the compassing of the King's death: and as if by this mode of expression he had not done enough to keep the ideas asunder, and from abundant regard for the rights and liberties of the subject, he immediately adds, " But then there must be an overt act TO PROVE that conspiracy; and then that overt act ro PROVE such design, is an overt act TO PROVE the compassing of the death of the King." The language of this sentence labors in the ear from the excessive caution of the writer;-afraid that his reader should jump too fast to his conclusion, upon a subject of such awful moment, he pulls him back after he has read that a conspiracy to imprison the King is an overt act to prove the compassing of his death, and says to him, But recollect that there must be an overt act To PROVE, in the first place, that conspiracy to imprison the King, and even then that intention to imprison him, so manifested by the overt act, is but in its turn an overt act TO PROVE the compassing or intention to destroy the King. Nor does the great and benevolent Hale rest even here, but after this almost tedious perspicuity, he begins the next sentence with this fresh caution and limitation, “but then this must be intended of a conspiracy, FORCIBLY to detain and imprison the King." What then is a conspiracy forcibly to imprison the King?-surely it can require no explanation: it can only be a direct machination to seize and detain his PERSON by rebellious force. Will this expression be satisfied by a conspiracy to seize speculatively upon his authority by the publication of pamphlets, which, by the inculcation of republican principles, may in the eventual circulation of a course of years, perhaps in a course of centuries, in this King's time, or in the time of a remote successor, debauch men's minds from the English constitution, and, by the destruction of monarchy, involve the life of the monarch?-Will any man say, that this is what the law means by a conspiracy against the King's gov ernment, supposing even that a conspiracy against his government were synonymous with a design upon his life? Can any case be produced where a person has been found guilty of high treason, under this branch of the statute, where no war has been actually levied, unless where the conspiracy has been a forcible invasion of the King's personal liberty or security? I do not mean to say that a conspiracy to levy war may not, in many instances, be laid as an overt act of compassing the King's death, because the war may be mediately or immediately pointed distinctly to his destruction or captivity; and as Lora